LESSON 1.

THE RIGHT TO FREEDOM (LIBERTY) AND ITS LIMITATIONS:

PRECAUTIONARY AND PROTECTIVE MEASURES

PROF. YOLANDA DE LUCCHI

ASSOCIATE PROFESSOR IN PROCEDURAL LAW

Every person has a right to freedom and security. No one may be deprived of
his or her freedom except in accordance with the provisions of this article and in
the cases and in the manner provided by the law.
The right to liberty is a key principle of the Spanish Constitution (art. 17.1).

But the Constitution sets forth the possibility of restraining the liberty in criminal
proceedings in order to achieve other objectives such as the effectiveness of
the trial, the effectiveness of the investigation, and the protection of the victim.

“1. Every person has a right to freedom and security. No one may be deprived
of his or her freedom except in accordance with the provisions of this article and
in the cases and in the manner provided by the law.
2. Preventive detention may last no longer than the time strictly required in
order to carry out the necessary investigations aimed at establishing the facts;
in any case the person arrested must be set free or handed over to the judicial
authorities within a maximum period of seventy-two hours.
3. Any person arrested must be informed immediately, and in a manner
understandable to him or her, of his or her rights and of the grounds for his or
her arrest, and may not be compelled to make a statement. The arrested
person shall be guaranteed the assistance of a lawyer during police and judicial
proceedings, under the terms established by the law.
4. A habeas corpus procedure shall be regulated by law in order to ensure the
immediate handing over to the judicial authorities of any person arrested
illegally.
Likewise, the maximum period of provisional imprisonment shall be stipulated
by law.”

The European Court of Human Rights also sets forth the right to liberty in its
article 5:
.
Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for noncompliance with the lawful
order of a court or in order to secure the fulfilment of any obligation prescribed
by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing
him before the competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered necessary to prevent
his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before the
competent legal authority; (e) the lawful detention of persons for the prevention
of the spreading of infectious diseases, of persons of unsound mind, alcoholics
or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom action is being
taken with a view to deportation or extradition.

Let´s see which measures restrain the right of liberty.

1.1.ARREST

Arrest implies restraint on the liberty of a person within the law. It has been
called “the beginning of imprisonment”.
The exercise of the power of arrest represents an obvious and significant
interference with that right.
When the power of arrest is exercised, it is essential that it is exercised in a
non-discriminatory and proportionate manner.

1.1.1.THE POWER TO ARREST

-Arrest by the police (art. 492 Criminal Proceedings Act)

The Police are under the obligation to arrest in many situations, which we can
describe as pretrial, trail and posttrial:

a)Pretrial situations refer to those ones in which the detainee is a suspect in the
commission of a crime.

b)Trial situations refer to those where the detainee is prosecuted with an

offense that carries a sentence greater than that of correctional imprisonment.
And, whether there has been a warrant issued against him/her or his/her
background or the circumstances, implies that they will not appear when called
by the judge.
c) Posttrial situations refer to those where the detainee is convicted and he/she
is an escapee.

-Arrest by any person (art. 490 Criminal Proceedings Act)

The situations that provide the legal framework for an arrest by any person are
basically set on the same distinction from above

a)Pretrial situations: When a person is intending to commit a crime at the time

they go to commit it, the offender in flagrante.

b)Pending trial situation: when the person is escaping being a detainee or

prisoner due to a pending case.

c)Posttrial situations: when the accused or convict is in default, the person is

escaping from the penal institution where they are serving their sentence.

-Arrest warrant (art. 494 Criminal Proceedings Act)

The Judge will also agree to the arrest of those included under article 492 and
will issue an arrest warrant.

1.1.2. THE DETENTION CLOCK

How long can you be held in custody?

Art. 17.2 Spanish Constitution:

“Preventive detention may last no longer than the time strictly required in order
to carry out the necessary investigations aimed at establishing the facts; in any
case the person arrested must be set free or handed over to the judicial
authorities within a maximum period of seventy-two hours”

On the other hand, art. 498 of the Spanish Criminal Proceedings Act, sets forth:

If the Judge or Court the hand over was made to is the proper one for the case
and the arrest was made in accordance with the provisions of numbers 1., 2.
and 6., and the case referring to the accused in 7. of article 490, and 2., 3. and
4. of article 492, the arrest will be raised to prison, or annulled, with a time limit
of seventy-two hours from when the arrested individual was handed over.
The Judge or Court will do the same, and within the same time limit, with
respect to any person whose arrest they themselves have agreed.
Pursuant those two articles we can conclude two timelines in a detention:
-An absolute one, which is 72 hours
-A relative one, which is the time considered necessary which can be examined
on case-by-case basis.

To take into account: ARREST WITH A WARRANT: 72 HOURS

ARREST WITHOUT A WARRANT: 72 HOURS+ 72
HOURS

1.1.3. RIGHTS OF THE DETAINEE

Article 520 Spanish Criminal Proceedings Act sets forth the rights of the
detainee, which have been established also in many European Union
Directives.
Those rights are as follows:
All arrested or imprisoned persons will be informed, in writing, in easily
understandable language, in a language which they can understand
immediately, of the acts they are accused of and the grounds giving rise to their
imprisonment, and also their rights, particularly the following:
a) The right to remain silent, not making a statement if they do not wish to, not
answering some or any of the questions put to them or declaring that they will
only make a statement to a Judge.
b) The right not to make a statement against themselves and not to confess
guilt.
c) The right to appoint a lawyer, without prejudice to the provisions of paragraph
1.a) of article 527, and to be advised by them without unjustified delay. In the
event that, due to geographical distance, it is not possible for the lawyer to
attend immediately, the detainee will be provided with communication with them
via telephone or video conferencing, except where such communication is
impossible.
d) The right to access such elements of the proceedings as are essential to
challenge the legality of the arrest or imprisonment.
e) The right to make their imprisonment known to a family member or person
nominated by them, without unjustified delay, and the place where, at any given
moment, they are in custody. Foreigners will have the right to the
aforementioned circumstances being notified to their country’s consulate.
f) The right, without unjustified delay, to communicate on the telephone with a
third party chosen by them. This communication will be held in the presence of
a member of the police or, as appropriate, a civil servant appointed by the judge
or prosecutor, without prejudice to the provisions of article 527.
g) The right to be visited by their country’s consular authority and to
communicate and correspond with them.
h) The right to be assisted by an interpreter, free of charge, where a foreigner
does not understand or speak Spanish or the official language of the
proceedings in question, or deaf people, or those with impaired hearing, or
other people with language difficulties are concerned.
i) The right to be examined by a forensic doctor or their legal replacement and,
in default, by the doctor at the institution they are in, or by any other coming
under the State or other Public Authorities.
j) The right to request free legal aid, the procedure for doing so and the
conditions to obtain it.
Furthermore, they will be notified of the maximum legal time limit on the arrest
prior to being brought before the judicial authority and the procedure by which
they may challenge the legality of their arrest.
On another hand, article 118 Spanish Criminal Proceedings sets forth the
defendant´s rights in criminal proceedings which are almost the same as the
detainee´s rights plus the right to be informed.

1.1.4. HABEAS CORPUS.

Habeas corpus is a recourse in law through which a person can challenge the
validity of an arrest by reporting the unlawful detention or imprisonment to
a court and request to bring the prisoner to court, to determine whether the
detention is lawful.

Habeas Corpus is a procedure that has the purpose to quickly verify if the
detention of a citizen was illegal. In the Spanish Constitution, this form is
regulated in the 4th paragraph of article 17

Habeas Corpus is configured as a right of the detainee, who may request to the
Court, from the moment of his detention, to determine within a maximum period
of 24 hours whether his detention has been carried out under the legally
established conditions or not.

It is really important to know that being taken into detention without any cause is
not the only reason to invoke this procedure. Habeas Corpus can also be
solicited when the rights of the detainee are not respected – this still means that
the detention was made in an illegal way. For example, the rights of the
detainee are not respected if he is refused to be granted an interpreter, and he
does not understand the language in which the authorities are talking to him.
The request of Habeas Corpus must specify the grounds on which the detention
is considered to be unlawful, which can be, for example, that the custodian
holding the prisoner does not have the legal authority, that the prisoner’s
constitutional rights have been violated, or that he has been subjected to
mistreatment, such as violence.

CAUSES FOR UNLAWFUL DETENTION

a) detention without the legal requirements to do so, as well as in violation of

the rights and formalities established
b) an illegal detention, due to the lack or insufficient legal support, or when the
person under arrest is kept in a facility or under an authority different from the
one established by law;
c) when the time established for pre-trial or provisional detention or prison has
already lapsed;
d) lack or insufficient reasoning of the provisional prison;
e) violation of substantial or procedural rights of the detainee.
The following parties are allowed to question the legality of a detention: the
detained person; his or her spouse or the person with an analogous relationship
to the detainee; the detainee´s children; ancestors; siblings of the detainee;
and, regarding minors and handicapped people, their legal guardians. Of
course, the legality of a detention can always be questioned by the detainee´s
lawyer.
Habeas corpus are very flexible proceedings and are regulated in Act 6/2984
24th may.

1.1.5. EUROPEAN ARREST WARRANT

The European arrest warrant ("EAW") is a simplified cross-border judicial
surrender procedure—for the purpose of prosecuting or executing a custodial
sentence or detention order. A warrant issued by one EU country's judicial
authority is valid in the entire territory of the EU.
How does it work?
This is a request by a judicial authority in one EU country to arrest a person in
another and surrender them for prosecution, or to execute a custodial sentence
or detention order issued in the first country. The mechanism is based on the
principle of mutual recognition of judicial decisions. It is operational in all EU
countries. It operates via direct contacts between judicial authorities.
In applying the EAW, authorities have to respect the procedural rights of
suspects or accused persons—such as the right to information, to have a
lawyer, and an interpreter, and to legal aid as stipulated by law in the country
where they are arrested.
How is it different to traditional extradition?
-Strict time limits. The country where the person is arrested has to take a final
decision on the execution of the European arrest warrant within 60 days after
the arrest of the person. If the person consents to the surrender, the surrender
decision must be taken within 10 days. The person requested must be
surrendered as soon as possible on a date agreed between the authorities
concerned, and no later than 10 days after the final decision on the execution of
the European arrest warrant.
-Double criminality check – no longer required for 32 categories of offences
For 32 categories of offences, there is no verification on whether the act is a
criminal offence in both countries. The only requirement is that it be punishable
by a maximum period of at least 3 years of imprisonment in the issuing country.
For other offences, surrender may be subject to the condition that the act
constitutes an offence in the executing country.
-No political involvement
Decisions are made by judicial authorities alone, with no political considerations
involved.
-Surrender of nationals
EU countries can no longer refuse to surrender their own nationals, unless they
take over the execution of the prison sentence against the wanted person.
-Guarantees
The country that executes the EAW may require guarantees that:
a. after a certain period the person will have the right to ask for review, if the
punishment imposed is a life sentence.
b. the wanted person can do any resulting prison time in the executing country,
if they are a national or habitual resident of that country
.-Limited grounds for refusal

1.2. PROVISIONAL RELEASE

Provisional release is the counterpart of pretrial detention. Before his trial, an

accused is granted either provisional release or remains in custody. For the
European Court of Human Rights (hereinafter ECtHR), pretrial detention or
remand in custody must remain the exception. Since a defendant is presumed
innocent, the detention should not begin before he is convicted. Provisional
release is the principle, pretrial detention the exception. However, provisional
release may be denied to the accused in certain circumstances when it is
proved to be reasonable and necessary.

The right of an accused person to provisional release pending trial is a corollary

of the presumption of innocence, and is widely recognised in international
human rights instruments.
Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR)
stipulates that: “Anyone arrested or detained on a criminal charge shall be
brought promptly before a judge or other officer authorized by law to exercise
judicial power and shall be entitled to trial within a reasonable time or to
release. It shall not be the general rule that persons awaiting trial shall be
detained in custody, but release may be subject to guarantees to appear for
trial, at any other stage of the judicial proceedings, and, should occasion arise,
for execution of the judgement”

The judge may impose on the suspect charged with a crime and awaiting crime
a set of pre-trial restrictions to ensure that they comply with the judicial process
to those charged with a crime and awaiting trial. This is called the bail. Bail is
the conditional release of a defendant with the promise to appear in court when
required.

Bail can include:

-A bond which is an agreement by a criminal defendant to appear for trial
or pay a sum of money set by the court.
-The forfeit the passport or any other licenses
-Reporting to a police station at agreed times, for example once a week
-Protection measures which will be explained in successive paragraphs

If the defendant does not stick to these conditions, the defendant can be
arrested again and be taken to prison to wait for their court hearing.

1.2 .REMAND IN CUSTODY OR PRE-TRIAL DETENTION

If the court decides to put a defendant on remand it means they will go to prison
until their hearing before the judge. The requirements to meet in order to issue a
pretrial detention warrant are:

-The crime has to be a serious one (more than two years of deprivation of
liberty as a penalty)
-There have to be sufficient grounds in the case to believe that the person
against whom the detention order is ordered is criminally responsible for the
crime.
-Risks to avoid with the pretrial detention (art. 503 Spanish Criminal
Proceedings Act) if:
  the judge thinks the defendant may not go to their court hearing
 the judge thinks the defendant may commit another crime while on bail
 the defendant has been given bail before and not stuck to the terms
 the judge thinks the defendant will conceal, alter or destruct the sources
of evidence

There are limits to being in remand which are set forth in article 504 Spanish
Criminal Proceedings Act.
Pretrial detention will last for as long as it is essential to achieve any of the
purposes provided for in the previous article and for as long as grounds still
exist justifying its order:
-it may not exceed one year if the crime carries a sentence of three years
imprisonment or less ((extension of up to two years)
-It may not exceed two years if the sentence is more than three years
imprisonment if the crime carries a sentence of more than three years
(extension up to six months)
-Up to six months if the pretrial detention was ordered to secure evidence
Calculation of the time limits set out in this article will take into account the time
spent by the accused in detention or provisional detention on the same
grounds.
What happens if you are remanded in custody and you are found not
guilty?
You are entitled to an economic compensation pursuant article 294 LOPJ.

1.4. PROTECTION ORDER OR RESTRAINING ORDER

In some cases, the primary scope of the measures adopted during the
investigation of a crime are not only to reassure the presence of the accused in
trial, but also to protect the victim.
In these cases, the defendant will be released but a protection or restraining
order can be issued to protect the victim.
These orders become more significant in cases of gender violence where the
protection order is called a comprehensive protection order, which includes civil
and administrative measures in addition to the criminal ones.
1.4.1 RESTRAINING ORDERS
There are two types of restraining orders that impose limitations on the right of
liberty of the defendant, such as the prohibition of contact between victim and
defendant.
SIMPLE RESTRAINING ORDER
Article 544 Spanish Criminal Proceedings Act:
In cases where one of the crimes mentioned in article 57 of the Criminal Code is
being investigated, the Judge or Court may, with grounds and where this is
strictly necessary to protect the victim, impose a ban on the accused residing in
a specific place, area, municipality, province or local district, or autonomous
region as a precaution. Under these same terms, as a precaution, a ban may be
imposed on the accused going to specific places, areas, municipalities,
provinces or other local districts, or autonomous regions, or from approaching
or communicating with specific persons, to the degree deemed appropriate.
RESTRAINING ORDER IN GENDER VIOLENCE
The Restraining Order is a judicial resolution that establishes “the statute of
comprehensive protection” of gender-based violence victims through the
adoption of criminal and civil precautionary measures by one same court,
activating other measures in the field of social services.
What is the order of protection?
The Act 27/2003
The order of protection is “a court judgement” in cases where there is strong
evidence of the commission of crimes or misdemeanors of domestic violence
and in cases where there is an objective situation of risk to the victim. A
judge orders their protection through the adoption of civil and/or criminal
precautionary measures, in addition to activating the necessary social
assistance and protection measures, by reference to the order of protection
concerning the coordination points of the autonomous regions.
1. Criminal measures:
a. Prison
b. Restraining order
c. Prohibition to communicate
d. Prohibition to return to the scene of crime or the victim's residence
e. Forfeit of weapons or other dangerous objects
2. Civil measures:
a. Award of use and enjoyment of the dwelling
 b. Conditions of custody, visitation, communication with children
c. Provision of food
d. Child protection measure to avoid danger or injury
3. Assistance and protection measures: established in law, both at state or
autonomic level.
Who can apply for it?
a. The victim
b. Anyone related to the victim in accordance with article 173 of the Criminal
Code
c. The Public Prosecution
d. Adopted by the judge ex officio
e. Assistance institutions or bodies, either private or public, which were aware of
any crime or misdemeanor as for domestic violence should immediately inform
the judge or prosecutor on duty so that the judge may initiate or urge the
prosecutor to initiate the procedure to implement the protection order.
IMPORTANT.- The civil action must be ordered specifically:
1. By the victim or their legal representative
2.By the prosecutor, when there are children who are either minors or
disqualified